PUTRAJAYA (Nov 4): Nominations for the 15th general election (GE15) will proceed as scheduled on Saturday (Nov 5), after Pandan voter and lawyer Syed Iskandar Syed Jaafar failed to obtain a stay order against the Election Commission (EC) from the Court of Appeal, pending the hearing of his appeal scheduled for Nov 14.
In a unanimous decision, a three-member bench at the appellate court led by judge Datuk Vazeer Alam Mydin Meera said there is nothing to stay, following the High Court's decision delivered last Friday (Oct 28) to not grant leave for Syed Iskandar's judicial review.
"Since there is no order against the appellant (Syed Iskandar) from carrying out any act, this court is of the considered view there is nothing before this court to be stayed for the leave for judicial review.
"The application to preserve the status quo (as with Oct 8, before the dissolution), this court finds the appellant had failed to establish Section 44 of the Courts of Judicature Act 1964 for the injunction sought to halt the preparation of the 15th general election," he said.
According to the judge, the hearing of the appeal would not be nugatory as it had been set for Nov 14, five days before polling day. "Hence, we find that the balance of convenience lies in the favour of the respondents (caretaker Prime Minister Datuk Seri Ismail Sabri Yaakob, the EC and the government) for the injunction not to be granted," he said.
Sitting with Vazeer Alam in the proceedings, which were conducted online, were judges Datuk M Gunalan and Datuk Seri Mariana Yahya. They made no order as to costs.
Syed Iskandar filed the judicial review on Oct 14, challenging Ismail Sabri's decision to seek the Yang di-Pertuan Agong's request for a dissolution of Parliament.
He said the decision was filled with impropriety as it was made on the behest and benefit of Umno president Datuk Seri Dr Ahmad Zahid Hamidi, who was presently entering his defence for his criminal breach of trust, money laundering and graft charges.
The lawyer said the dissolution sought was at the expense of poor Malaysians who might be facing possible impending flood conditions as the general election was called during the monsoon season.
He named Ismail Sabri, the EC and the government as respondents in the appeal.
Syed Iskandar's appeal will now be heard with former Klang member of Parliament Charles Anthony Santiago's appeal. Santiago had filed an originating summons which was also struck out by the court last Friday.
The Pandan voter's counsel, Datuk Seri Gopal Sri Ram, who appeared with R Kenghadharan and Yasmeen Soh argued that the court should allow a stay of the High Court's order pending its appeal, as it may be deemed nugatory as the EC has already set Nov 5 for nomination day.
Sri Ram said the High Court has got it wrong as the appellant (Syed Iskandar) is not challenging the discretion or prerogative of the Yang di-Pertuan Agong to dissolve the Parliament but the act conducted by Ismail Sabri in seeking the dissolution, which amounted to illegality.
"My client is challenging the bad advice given by Ismail Sabri which was deemed erroneous on the ground of public law to protect criminals (Ahmad Zahid who is facing charges) and ignore the plight of the poor people who may face the flood conditions.
"The Meteorological Department had also come out with a statement that the monsoon season was coming out early and this is why we are challenging the advice given by the PM to seek the dissolution of the Parliament and calling for election," he added.
When Parliament was dissolved, the EC has to call election within 60 days, and the EC has already fixed Nov 5 as nomination day nationwide for the 222 parliamentary seats and several states, namely Pahang, Perlis, and Perak and polling has been scheduled for Nov 19.
Sri Ram also argued that his client had affirmed the affidavit stating the allegations on Ismail Sabri, which was not replied or denied by the respondents, and hence this court should deem that without the reply it would have to be considered to be true.
Senior federal counsel Shamsul Bolhassan argued that Sri Ram is arguing as if going into the merits of the appeal and pointed that the relief sought to maintain status quo as with Oct 8 is an attempt to restore both houses of Parliament.
"In a nutshell, he is urging the court to reverse the decision of the Yang di-Pertuan Agong and for this, this motion (for stay) should be dismissed. Going forward, the Attorney General Chambers says that a stay or injunction granted against the EC and government would be deemed to bar it from carrying out its constitutional function under the constitution.
He said the EC is mandated to conduct a general election within 60 days and this application sought is paralysing or falsifying the effect of the EC from exercising its function.
Last week, High Court judge Datuk Ahmad Kamal Md Shahid dismissed Syed Iskandar's judicial review application, saying the Yang di-Pertuan Agong's discretion to dissolve Parliament was non-justiciable (cannot be disputed in court) and that Ismail Sabri did not need to consult the Cabinet to seek a dissolution.
"The discretion of the Yang di-Pertuan Agong in deciding to dissolve the assembly is non-justiciable in any proceedings. The judiciary also cannot enter into the realm of the executive or legislature," the judge said.
Ahmad Kamal also dismissed the application by Sri Ram for a stay of the High Court's decision, prompting this appeal at the Court of Appeal.
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